The Washington PostDemocracy Dies in Darkness

Death penalty’s 50-year rise and fall since Supreme Court struck it down

California Gov. Ronald Reagan, who opposes the abolition of the death penalty, is interviewed by radio reporter Dick Leonard after looking at a newspaper account of the state supreme court ruling on Feb. 17, 1972, that the death penalty is unconstitutional. (Bettmann/Bettmann Archive)
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Anthony Amsterdam was in California and wide-awake in the predawn hours on June 29, 1972, glued to the news as he awaited word from the U.S. Supreme Court. Earlier in the court’s term, Amsterdam, then a 36-year-old defense lawyer, had argued Furman v. Georgia, a case that asked the court to decide whether the death penalty was constitutional.

Amsterdam had led oral arguments on a six-person legal team representing multiple clients on death row. Among them was William Henry Furman, a Black Georgia man who had been sentenced to death for murder four years earlier after a botched burglary during which Furman said he tripped and accidentally fired his gun.

“Because the decision was slated to come down that morning, I had the radio on,” Amsterdam told The Washington Post last Wednesday, the 50th anniversary of the Furman ruling. “I was listening in the dark.”

As the opinions were announced, Amsterdam remembers reporters screaming over the radio about the court’s decision.

“These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual,” Justice William O. Douglas wrote for the majority.

The court ruled 5 to 4 in Furman’s favor, determining that the death penalty was arbitrarily and “freakishly” imposed, in violation of the Eighth and 14th amendments.

The ruling led to an immediate de facto moratorium on capital punishment across the United States and invalidated the death sentences of nearly 700 people. The justices arrived at their final votes by vastly different paths, writing nine separate opinions for a total of more than 50,000 words — among the court’s lengthiest rulings at the time.

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Fifty years later, the legacy of Furman is as significant as it is complicated.

“What’s important about Furman is that it demonstrated the possibility that the battle for abolition could be won despite the apparent odds, and it encouraged a community of purpose to wage that battle,” Amsterdam said.

But it would take decades for that battle to bear fruit.

The justices didn’t actually declare the death penalty unconstitutional in Furman; rather, they found that states were applying it arbitrarily and in a discriminatory manner. Dozens of states scrambled to rewrite their death penalty laws, and in 1976 in Gregg v. Georgia, the court upheld most of these news laws and the constitutionality of capital punishment.

In the aftermath of Gregg, most states codified the death penalty, and death sentences and executions began an ascent to their highest levels of the modern era.

When the Supreme Court ruled in Furman, annual executions had actually been on the wane for decades, after peaking at 199 in 1935. Death sentences were still handed down, but executions were dwindling and public support was sagging; by 1968, the year Furman was sentenced, fewer than half of Americans favored capital punishment for murder.

The ruling came on the heels of landmark decisions expanding civil rights and criminal justice reform, including Brown v. Board of Education and Miranda v. Arizona. Frank R. Baumgartner, a political science professor at the University of North Carolina and a death penalty historian, said the Furman decision buoyed hopes that the death penalty could be ended permanently and the United States might become a worldwide leader in abolition.

Instead, the rulings in cases including Furman and Miranda sparked a backlash, primarily driven by conservative politicians in the South, which spurred “tough of crime” policies that led to an explosion of executions.

The four dissenting justices in Furman had effectively laid out a road map for states on how to change their laws to make the death penalty less arbitrary and thus pass constitutional muster. States including Louisiana and North Carolina began mandating capital punishment for all homicides.

Those laws were overturned by the 1976 Gregg ruling, but they showed “just how far the governors were willing to go,” Baumgartner said.

Between 1972 and 1977, more than 30 states legalized capital punishment. Executions climbed steadily, hitting a peak in 1999, when there were 279 death sentences and 98 executions, according to data tracked by the nonprofit Death Penalty Information Center (DPIC).

Baumgartner divides the 50 years of the post-Furman era into two distinct segments. First, there was nearly 25 years of growth and support for the death penalty. Then, after the new millennium, attitudes began to shift, and so did the legal framework.

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Supreme Court rulings in 2002 and 2005 found the death penalty unconstitutional for the “mentally retarded” and defendants who committed their crimes as juveniles.

“If Furman instigated the ‘tough on crime’ period, we’re now in the ‘you can’t trust the government to get it right’ period,” Baumgartner said.

Meanwhile, states have steadily abolished the death penalty, and public support for executions, which climbed to as high as 80 percent in the 1990s, has plummeted back down to mid-century levels, dipping to 54 percent in a Gallup poll last year.

Robert Dunham, the executive director of the DPIC, attributes the shift to a range of factors, including the rise of death row exonerations and greater awareness of flaws in the criminal justice system.

“In the 1990s, you didn’t have the stories about the drug-addicted lawyers or lawyers asleep in court or who missed the filing deadline by one day that led to their client’s execution,” he said. “You didn’t have stories about prosecutors hiding exculpatory evidence, presenting junk science, coercing confessions or using snitch testimony that falsely implicated innocent people.”

Many of those issues have been raised in recent high-profile innocence claims of death-row prisoners including Richard Glossip and Julius Jones in Oklahoma, and Melissa Lucio and Rodney Reed in Texas.

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Since 1973, a year after Furman, the DPIC and other groups have identified 189 cases of death-row inmates being exonerated.

“That is one person — wrongly convicted, wrongly sentenced to death and exonerated — for every 8.2 people who have been executed,” Dunham said.

Last year, just 11 people were executed, the lowest number since 1988.

The death penalty has also grown geographically isolated, with just three states — Alabama, Oklahoma and Texas — accounting for a majority of both death sentences and executions in 2021. Five counties, including Harris County, Tex., and Oklahoma County, Okla., account for 20 percent of all executions in the past 50 years.

The majority of executions carried out in the present day are from ’90s-era cases that wouldn’t be capitally prosecuted in 2022, Dunham said.

But he said the states and counties that remain dedicated to the death penalty are engaging in “increasingly extreme conduct.”

Botched executions and an inability to obtain lethal injection drugs are forcing some states to return to methods such as the firing squad and electric chair that were previously deemed too barbaric.

Fifty years after Furman, few of the death penalty’s flaws have been corrected; its opponents argue even more have come to light. It’s a system that observers including Amsterdam see failing under its own weight.

“It will be ended in a few generations at most, not through any decision of the ... Supreme Court,” he said, “but by the actions of prosecutors who increasingly cease to seek death verdicts, juries which increasingly refuse to return death verdicts, state legislatures and state-court judges who are increasingly in closer tune with a wave of public opinion that is increasingly repudiating capital punishment as penologically ineffectual, morally indecent and just plain dumb.”